Lismore City Council v Richmond Valley Council & Anor

Land and Environment Court (NSW)|2003-09-29|Before: Lloyd J, Mr J

Introduction 1 New South Wales Sugar Milling Co-operative Limited obtained development consent from the first respondent, Richmond Valley Council ("Richmond Valley"), for a co-generation plant at the Broadwater sugar mill. The plant will utilise cane waste, known as bagasse, and cane trash (which would otherwise be burned in the field) for combusting in a boiler to produce steam which will propel a turbine driven electricity generator. The electricity thereby generated will be used in the mill, with excess electricity returned to the grid. 2 In separate proceedings I dismissed an appeal against the grant of development consent. A fuller explanation of the proposal, providing the context of the matter, is found in three judgments in those proceedings (Broadwater Action Group Inc v Richmond Valley Council and Anor [2003] NSWLEC 202; Broadwater Action Group Inc v Richmond Valley Council and Anor [No. 2] [2003] NSWLEC 289; Broadwater Action Group Inc v Richmond Valley Council and Anor [No. 3] [2003] NSWLEC 290). In these proceedings the applicant, Lismore City Council ("Lismore"), appeals against the failure of the consent authority, Richmond Valley, to include a condition of consent requiring the proponent of the development to make a monetary contribution for the upgrading of portions of Broadwater Road, within the Lismore local government area (s 98 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act")) 3 Broadwater Road is on the opposite side of the Richmond River to the sugar mill and is connected to the village of Broadwater by a bridge. Sugar cane and sugar cane trash will be transported to the mill along a number of roads within the Richmond Valley Council's area and along Broadwater Road, within the Lismore City Council's area. Lismore contends that in the event of development consent being granted a condition should be imposed requiring a monetary contribution for the upgrading of Broadwater Road. Alternatively, Lismore contends that if a monetary contribution is not imposed then the development application should be refused. 4 As to whether there is power under the EP&A Act to impose such a condition of consent in relation to roads in an adjoining local government area, the parties are in agreement. They agree that the power to do so lies under s 80A(1)(a) and (f) of the EP&A Act, rather than s 94, since the reference to the "area" in s 94 appears to be a reference to the area of the consent authority. The correct source of power is, however, of no relevance. It is a settled principle that if an act is done pursuant to a particular head of power which was unavailable, it may be supported by any other available head of power (R v Bevan; Ex parte Elias & Gordon (1942) 66 CLR 452 at 487; Lockwood v The Commonwealth (1954) 90 CLR 177; Brown v West (1990) 169 CLR 195 at 203; Johns v Australian Securities Commission & Ors (1993) 178 CLR 408; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409 at 412; Darling Casino Ltd v The Minister for Planning & Anor (1995) 86 LGERA 186 at 209-210; and Holster v Director General of National Parks and Wildlife Service [1999] NSWLEC 102 at [87] to [112]). 5 Section 80A(1)(a) of the EP&A Act allows a consent authority to impose a condition of consent if it relates to any matter referred to in s 79C(1) of relevance to the development the subject of consent. Section 80A(1)(f) allows a consent authority to impose a condition of development consent if it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in s 79C applicable to the development the subject of the consent. Section 79C(1)(b) refers to the likely impacts of the development on both the natural and built environments in the "locality" in which the development is to be situated (Parramatta City Council v Peterson (1987) 61 LGRA 286 at 293 per Stein J, Collin C Donges & Associates Pty Limited v Baulkham Hills Shire Council (1989) 67 LGRA 370 per Stein J). 6 The parties agree that the existing condition of Broadwater Road is, apart from one section, sub-standard even for current traffic. It is not appropriate for additional traffic to use the road unless the road is improved or upgraded to accommodate the expected volume of traffic following completion of the development. There being no dispute between the parties about the power of the Court to impose a condition of consent requiring either the carrying out of the necessary road works or the payment of a monetary contribution therefor, the question becomes the reasonableness of the condition. The real issue is the question of the apportionment of the cost of the necessary road works: that is, the appropriate contribution by the proponent of the development towards the necessary road works. It would be clearly unreasonable for the proponent to meet the full costs of upgrading a road which is already substandard and inadequate to cater for existing traffic. It must be remembered that any condition of development consent must have a planning purpose, fairly and reasonably relate to a development and must not be so unreasonable that no reasonable planning authority could have imposed it (see Newbury District Council v Secretary of State for the Environment [1981] AC 578; Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554 at 572 per Lord Denning; Parramatta City Council v Peterson (1987) 61 LGRA 286 at 293-294; and Lake Macquarie City Council v Hammersmith Management Pty Limited [2003] NSWCA 313 at [53]). It is to be observed that such requirements are cumulative (Hutchison 3G Australia Pty Limited v Waverley Council (2002) 123 LGERA 75 at 80 per Cowdroy J).

The parties' submissions 7 Mr J E Robson, counsel for the applicant, relies upon the following submissions as to a reasonable contribution to be made by the second respondent towards road works. (a) The reasonable contribution to be made by the second respondent towards the road works is 20 per cent of the total cost of such work. The precise nature of the relationship between the increase in traffic attributable to the existing sugar mill and the growth in traffic related to the co-generation facility is unclear making it impossible to compare total traffic volumes as discrete amounts relating to each of the separate facilities. Further, there does not appear to be any significant historical increase in the generation of traffic to and from the sugar mill, and the reason for this is also unclear. (b) Mr M Findlater, an engineer who gave expert evidence for the proponent, did not visit the relevant portions of Broadwater Road. He could not, therefore, have properly assessed the impact of the increased traffic upon the road. (c) The traffic assessment in the environmental impact statement ("EIS") does not adequately address the impact of the co-generation plant upon the road network within Lismore Council's local government area. Particularly, such assessment insufficiently gauges the potential impact of the significant increase in truck movements attributable to the plant upon both road safety or the capacity of Broadwater Road. Mr M S Perkins, Lismore's development assessment engineer, states that the road's pavement depths and structural capacity to support the proposed traffic loads should have been part of such an assessment. (d) During the assessment period of the development application by Richmond Valley, Lismore provided draft conditions to Richmond Valley to address the impact of the proposal upon Broadwater Road. Such conditions were supported by that council's engineering section, but were not included in the conditions that were imposed. (e) Notwithstanding that Lismore plans to upgrade the road regardless of whether or not the proposal proceeds, the proposal will create hardship for Lismore. At the very least, the work must necessarily be undertaken earlier than otherwise planned. 8 Mr A M Pickles, counsel for the second respondent, relies upon the following submissions as to a reasonable contribution to be made by the second respondent. (a) Lismore's suggested condition is not reasonable because it would require the proponent to carry out the whole of the improvement works for Broadwater Road notwithstanding that the traffic generated by the co-generation plant will not constitute the entirety of the traffic using the road. Moreover, Broadwater Road is not the sole means of access to the development. (b) It is necessary to determine the extent to which additional volumes of traffic attributable to the plant will contribute to the extent of upgrading required. A reasonable contribution is determined by calculating the additional cost of constructing the road as a result of the development. That is, a reasonable contribution would first assume that Lismore would construct the road to a sufficient standard to meet the existing demand. (c) Mr R Gennaoui, a transport and traffic engineer who was called for Lismore, calculated that 18.1 per cent of total truck movements attributable to the mill will be attributable to the co-generation plant in 2004, with this share reducing to 17.8 per cent in 2010. It is submitted, that therefore, a 20 per cent contribution towards the total cost of upgrading a road that is currently of an insufficient standard is unreasonable. (d) It is necessarily the case that the traffic volumes on Broadwater Road have increased with the construction of Broadwater Bridge. The plant will merely add more traffic to this increased base volume. Further, the development consent for the Richmond River Bridge contemplated the carrying out of works by Lismore to the west of the former ferry stop, which had been replaced by the bridge. (e) According to Mr Findlater, only some of the items listed by Mr Perkins in his works cost assessment are increased by reason of the development. Mr Perkins' costing is further overestimated to the extent to which the first 1.7 km section includes works which the proponent accepts should be carried out on the western approach to the bridge pursuant to condition No. 79. (f) Contrary to his assertion, Mr Perkins has not calculated the contribution sought in accordance with Lismore's s 94 Contributions Plan: he adopted an equivalent standard axle ("ESA") of 3.4, rather than one of 1.9, employed by the plan. (g) In the absence of an upgrade of the road, the council has other options to ensure that the road is used safely. These include the imposition of a tonnage restriction on the road or a lower speed limit.

Conclusions 9 In determining a reasonable contribution towards the upgrading of the subject portions of Broadwater Road, it is necessary to estimate the proportion of traffic on the road during the period 2004- 2010 which will be attributable solely to the co-generation plant. This figure will correspond to the quantum of the cost of the works for which the proponent should be responsible. Despite Mr Robson's submission that the relationship between the increase in traffic attributable to the operation of the plant and the increase in traffic relating to the existing mill is unclear, the data before the Court nevertheless enables a calculation of a reasonable contribution. 10 Although Lismore claims a contribution of 20 per cent of the cost of the works, Mr Gennaoui found that a lower proportion of traffic associated with the mill will be attributable to the co-generation plant. His table entitled "Total Truck Generation from Sugar Mill " shows that in 2004, when the co-generation plant is operational, 18.1 per cent of total truck movements from the mill will be attributable to the proposal, this proportion decreasing to 17.8 per cent in 2010. Further, Mr Gennaoui calculates that in the period 2004- 2010, 51 per cent of the additional traffic from the sugar mill will be attributable to the co-generation plant. 11 In the absence of clear statistics showing the present and future contributions to total traffic along Broadwater Road attributable to the sugar mill, the figures in Mr Gennaoui's table of existing and projected traffic volumes entitled "Traffic Volumes Along Broadwater Road" are adopted. The total traffic along the road attributable to the sugar mill, according to the table, is the sum of the values in the rows labelled "Rigid Trucks (3 axles)", "Rigid Trucks (rigid trucks 4 axles [sic]" and "Articulated Trucks (6 axles)". The row labelled "Cars" is, for the purposes of this analysis, assumed not to be attributable to the sugar mill; and cars are a relatively unimportant component of traffic on Broadwater Road, most of which have nothing to do with the mill. Moreover, the numbers of cars remain constant throughout the analysis in the table, so that they are of little importance in the Court's examination of how the proposal would contribute to projected increases in traffic levels. 12 In applying Mr Gennaoui's table of existing and projected traffic volumes, it can be estimated that 465 of the 748 total existing "With Haulage" Passenger Car Units ("PCU's") are attributable to the sugar mill. Likewise, 878 of the 1160 total "Future [that is, 2010] with Haulage" PCU's will be attributable to the sugar mill. Therefore, during the period 2004- 2010, the increase in traffic along Broadwater Road attributable to the entirety of the mill's operations (that is the mill and the co-generation plant) will be 413 PCU's. As previously noted, Mr Gennaoui states that 51 per cent of this increase will be due solely to the operation of the co-generation plant. It necessarily follows, then, that 210.63 PCU's (of the increase in traffic) will be directly attributable to the co-generation plant. This equates to 23.99 per cent of the "Future With Haulage" traffic from the mill and 18.16 per cent of the total "Future with Haulage" traffic (including cars) along Broadwater Road. 13 I conclude, therefore, that the proponent should contribute 18 per cent (rounded to the nearest percentage point) of the total cost of the works required to upgrade the relevant portions of Broadwater Road which require upgrading. A condition to this effect would satisfy the requirements for reasonableness set out in Newbury. 14 Two sections of Broadwater Road require upgrading. A 1.7 km section immediately west of the Broadwater Bridge, and a separate 5.4 km section from Kilgin Road to Wyrallah Road. There is little difference between the costing of the necessary upgrading works calculated by Mr Perkins and Mr Findlater. Doing the best I can, given an examination of the evidence before the Court, it seems that the works on the 5.4 km portion of Broadwater Road will cost $2,196,803, and that for the 1.7 km portion will cost $715,143. 15 The proponent must contribute 18 per cent of these sums, which is $395,424.50 and $128,725.70 respectively: a total of $524,150.20. This sum is to be paid in ten annual payments of $52,415.02, with the first made upon the commissioning of the co-generation facility, and thereafter at 12 monthly intervals. An appropriate condition of consent will be included.

Orders 16 The formal orders of the court are as follows: (1) The appeal is allowed. (2) The following condition is added to the conditions of development consent: 84A. NSW Sugar Co-operative Limited, or, upon any transfer of that company's interest in the development to another person, the person carrying out the development shall pay to the Lismore City Council a monetary contribution for the purposes of upgrading of Broadwater Road in the sum of $524,150, as follows: (i) $52,415 upon the commissioning of the co-generation facility; (ii) thereafter nine (9) equal payments of $52,415 at twelve (12) monthly intervals on the anniversary of the commissioning of the co-generation facility.

The monetary contributions shall be indexed and adjusted annually in accordance with the consumer price index. (3) The exhibits may be returned.

I hereby certify that the preceding 16 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Lismore City Council v Richmond Valley Council & Anor [2003] NSWLEC 295 APPLICANT: Lismore City Council

Second Respondent: New South Wales Sugar Milling Co-operative Limited FILE NUMBER(S) : 10026 of 2003 CORAM: Lloyd J KEY ISSUES: Development Application :- appeal - monetary contribution - condition - reasonableness - s 94 not applicable to contributions to neighbouring local government area LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C(1)(b), s 80A(1)(a), s 80A(1)(f), s 94, s 98 Broadwater Action Group Inc v Richmond Valley Council and Anor [2003] NSWLEC 202; Broadwater Action Group Inc v Richmond Valley Council and Anor No. 2 [2003] NSWLEC 289; Broadwater Action Group Inc v Richmond Valley Council and Anor No. 3 [2003] NSWLEC 290; Brown v West (1990) 169 CLR 195; Collin C Donges & Associates Pty Ltd v Baulkham Hills Shire Council (1989) 67 LGRA 370; Darling Casino Ltd v The Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186; Holster v Director General of National Parks and Wildlife Service [1999] NSWLEC 102; CASES CITED: Hutchison 3G Australia Pty Ltd v Waverley Council (2002) 123 LGERA 75 ; Johns v Australian Securities Commission & Ors (1993) 178 CLR 408; Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313; Lockwood v The Commonwealth (1954) 90 CLR 177; Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 40 FCR 409; Newbury District Council v Secretary of State for the Environment [1981] AC 578; Parramatta City Council v Peterson (1987) 61 LGRA 286; Pyx Granite Co Ltd v Ministry of Housing and Local Government [1958] 1 QB 554; R v Bevan; Ex parte Elias & Gordon (1942) 66 CLR 452 DATES OF HEARING: 29/09/2003; 02/10/2003; 03/10/2003 and 07/10/2003 DATE OF JUDGMENT: 11/18/2003

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